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S. B. No. 255As IntroducedAs Introduced
124th General Assembly | Regular Session | 2001-2002 |
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SENATOR Blessing
A BILL
To re-enact sections
4939.01, 4939.02, and 4939.03,
to amend
sections 4939.01, 4939.02, and 4939.03 as
re-enacted by
this
act, and to repeal section
4939.04 of the
Revised
Code, to
re-enact
certain
provisions of the
utility and
cable
public
right-of-way
law as
enacted by Am. Sub. H.B.
283
of
the 123rd
General
Assembly; to change the
definitional section of
that law, as re-enacted by
this act, to broaden
the application of the law to
gas and petroleum or
other hazardous liquid
pipelines; to state, as an
express prohibition, a
provision of law relating
to additional consent for
an existing use of a
public way; to
provide that
only those customers of a utility
service provider
that receive service from the
provider within a
political subdivision may be charged for specified
costs levied by the subdivision on the provider for
the use of public ways; to remove an exemption in
the law
concerning any legal requirements of
political
subdivisions, in effect prior to January
1, 1999,
for certain compensation for the right or
privilege
of use of a public way; and to declare
an
emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4939.01,
4939.02, and 4939.03 of
the Revised Code be re-enacted to
read as
follows:
Sec. 4939.01.
As used in this chapter: (A)
"Utility service provider" means a natural gas company,
local
exchange telephone company, interexchange telecommunications
company, electric
company, or any other person that occupies a
public way to deliver natural gas, electric, or telecommunications
services. (B)
"Cable operator" has the same meaning as in section 2 of
the
"Cable
Communications
Policy
Act of 1984," 98
Stat. 2779, 47
U.S.C.A. 522, as
amended. (C)
"Public way" means any public street, road, highway,
public
easement, or public waterway, and includes the entire width
of any right
of way associated with any public way.
Sec. 4939.02.
(A) A utility service provider or cable
operator
has the right to construct, repair, position, maintain,
or operate lines,
poles, pipes, conduits, ducts, equipment, and
related
appurtenances and facilities along, across, over, upon,
and under
any public way in the state, subject to the applicable
provisions
of this chapter and any other chapter of the Revised
Code.
The
lines, poles, pipes, conduits, ducts, equipment, and
related
appurtenances and facilities shall be constructed and
positioned
in such a way that safety is not unreasonably
compromised in the
use of the public way. (B) The state, or any political subdivision of the state,
shall
not discriminate among utility service providers or cable
operators, or grant a preference to any utility service provider
or
cable operator, in the issuance of permits or the passage of
laws,
ordinances, or resolutions for the use of public ways, or
create
or erect any requirements for entry upon and use of the
public
ways that are not necessary to protect the health, safety,
and
welfare of the public. (C) Nothing in this section shall be construed to authorize
any
utility service provider or cable operator to construct lines,
poles, pipes, conduits, ducts, equipment, and related
appurtenances and facilities along, across, upon, and under any
public way owned by a political subdivision without first
obtaining the consent of the political subdivision for such
construction, if consent is required by the political subdivision. (D) This section does not require any utility service
provider or
cable operator that, as of September 29, 1999,
occupies, or has obtained the consent of a political
subdivision
to occupy, a public way in the political subdivision,
to apply for
additional or continued consent of the political
subdivision as to
any existing lines, poles, pipes, conduits,
ducts, equipment, and
related appurtenances and facilities that
are in place on the
effective date of this section. The political
subdivision shall
not discriminate against any other utility
service provider or
cable operator seeking to use the same public
way. (E) The construction, repair, placement, maintenance, or
operation of lines, poles, pipes, conduits, ducts, equipment, and
related appurtenances and facilities by a utility service
provider
or a cable operator is declared to be a matter of
statewide
concern. (F) Consent for the use of a public way by a political
subdivision shall be based on the lawful exercise of the police
power of the political subdivision and shall not be unreasonably
withheld, nor shall any preference or disadvantage be created
through the granting or withholding of consent. A political
subdivision shall grant its consent under this division within
thirty days after the date a utility service provider or cable
operator applies for consent for the use of a public way.
Sec. 4939.03.
(A) A political subdivision of the state
shall not
levy a tax, fee, or charge or require any nonmonetary
compensation or free
service for the right or privilege of using
or
occupying a public way for purposes of delivering natural gas,
electric,
telecommunications, or cable television service. (B) A political subdivision may charge a utility service
provider
or a cable operator a construction permit fee to the
extent that such fee
applies to all persons seeking a construction
permit.
The fee shall be limited to the recovery of the direct
incremental
costs incurred by the political subdivision in
inspecting and
reviewing any plans and specifications and in
granting the
associated permit. (C) A utility service provider or cable operator that places
lines, poles, pipes, conduits, ducts, equipment, and related
appurtenances and
facilities in a public way shall restore the
public way to its former state of usefulness. To the extent a
utility service provider or cable operator does not comply with
this division, a political subdivision may charge the utility
service provider or cable operator the necessary costs to restore
the public way to its former state of usefulness. (D)
Nothing in this chapter shall be construed to prohibit a
political subdivision from doing either of the following: (1) Charging a cable operator a franchise fee in accordance
with
section 2 of the
"Cable Communications Policy
Act of 1984,"
98 Stat. 2779, 47 U.S.C.A. 542, as amended; (2) Allowing a credit, offset, or deduction against the
payment
of a construction permit fee for any franchise fee a cable
operator pays
to the political subdivision. (E) A utility service provider, including a reseller, that
does
not own, operate, maintain, install, or construct any
facility in
a public way and that does not otherwise disturb the
public way
shall not be required to pay a fee or to obtain a
construction
permit to access the public way.
Section 2. That sections 4939.01, 4939.02, and 4939.03 of the
Revised
Code, as
re-enacted by this act, be amended to read as
follows:
Sec. 4939.01. As used in this chapter: (A)
"Utility service provider" means a natural gas company,
pipeline company,
local exchange telephone company, interexchange
telecommunications company,
electric company, or any other person
that occupies a
public way to deliver natural gas, electric, or
telecommunications
services. (B)
"Cable operator" has the same meaning as in section 2 of
the
"Cable Communications Policy Act of 1984," 98
Stat. 2779, 47
U.S.C.A. 522, as amended. (C)
"Public way" means any public street, road, highway,
public
easement, or public waterway, and includes the entire width
of any right
of way associated with any public way. (D) "Pipeline company" means the owner of a pipeline facility
regulated under the "Accountable Pipeline Safety and Partnership
Act of 1996," 110 Stat. 3793, 3805, 49 U.S.C.A. 60101, et seq.
Sec. 4939.02. (A) A utility service provider or cable
operator
has the right to construct, repair, position, maintain,
or operate lines,
poles, pipes, conduits, ducts, equipment, and
related
appurtenances and facilities along, across, over, upon,
and under
any public way in the state, subject to the applicable
provisions
of this chapter and any other chapter of the Revised
Code.
The lines, poles, pipes, conduits, ducts, equipment, and
related
appurtenances and facilities shall be constructed and
positioned
in such a way that safety is not unreasonably
compromised in the
use of the public way. (B) The state, or any political subdivision of the state,
shall
not discriminate among utility service providers or cable
operators, or grant a preference to any utility service provider
or
cable operator, in the issuance of permits or the passage of
laws,
ordinances, or resolutions for the use of public ways, or
create
or erect any requirements for entry upon and use of the
public
ways that are not necessary to protect the health, safety,
and
welfare of the public. (C) Nothing in this section shall be construed to authorize
any
utility service provider or cable operator to construct lines,
poles, pipes, conduits, ducts, equipment, and related
appurtenances and facilities along, across, upon, and under any
public way owned by a political subdivision without first
obtaining the consent of the political subdivision for such
construction, if consent is required by the political subdivision. (D)
This section does not require any
A utility service
provider or
cable operator that, as of
the effective date of this
section
September
29, 1999, occupies, or
has obtained the consent
of a political subdivision
to occupy, a public way in the
political subdivision,
shall not be required to apply for
additional or continued consent of the political subdivision as to
any existing lines, poles, pipes, conduits, ducts, equipment, and
related appurtenances and facilities that are in place on
the
effective date of this section
September
29,
1999. The political
subdivision shall
not discriminate against any other utility
service provider or
cable operator seeking to use the same public
way. (E) The construction, repair, placement, maintenance, or
operation of lines, poles, pipes, conduits, ducts, equipment, and
related
appurtenances and facilities by a utility service
provider
or a cable operator is declared to be a matter of
statewide
concern. (F) Consent for the use of a public way by a political
subdivision shall be based on the lawful exercise of the police
power of the
political subdivision and shall not be unreasonably
withheld, nor shall any preference or disadvantage be created
through the granting or withholding of consent. A political
subdivision shall grant its consent under this division within
thirty days after the date a utility service provider or cable
operator applies for consent for the use of a public way.
Sec. 4939.03. (A)
A political subdivision of the state shall
not
levy a tax, fee, or charge or require any nonmonetary
compensation or free
service for the right or privilege of using
or
occupying a public way for purposes of delivering natural gas,
electric,
telecommunications, or cable television service. (B) A political subdivision
of this state may charge a
utility service provider
or a cable operator a construction permit
fee to the extent that such fee
applies to all persons seeking a
construction permit.
The fee shall be limited to the recovery of
the direct incremental
costs incurred by the political subdivision
in inspecting and
reviewing any plans and specifications and in
granting the
associated permit.
(C)(B) A utility service provider or cable operator that
places
lines, poles, pipes, conduits, ducts, equipment, and
related appurtenances and
facilities in a public way shall restore
the
public way to its former state of usefulness. To the extent a
utility service provider or cable operator does not comply with
this division, a political subdivision may charge the utility
service provider or cable operator the necessary costs to restore
the public way to its former state of usefulness.
(D)(C) Nothing in this chapter shall be construed to
prohibit a
political subdivision from doing either of the
following:
(1) Charging a cable operator a franchise fee in accordance
with
section 2 of the
"Cable Communications Policy
Act of 1984,"
98 Stat. 2779, 47 U.S.C.A.
542,as
542, as amended; (2) Allowing a credit, offset, or deduction against the
payment
of a construction permit fee for any franchise fee a cable
operator pays
to the political subdivision. (E)(D) A utility service provider, including a reseller,
that does
not own, operate, maintain, install, or construct any
facility in
a public way and that does not otherwise disturb the
public way
shall not be required to pay a fee or to obtain a
construction
permit to access the public way.
(E) A utility service provider that passes through
or charges
customers all or any portion of a tax, fee, charge, or
cost of
nonmonetary compensation or free service levied by a
political
subdivision for the right or privilege of using or
occupying a
public way for the purpose of delivering service, or
that passes
through or charges any cost related to carrying out
this division,
shall so pass through or charge only those customers
that receive
the utility service provider's service within the
geographical
limits of that political subdivision, and no other
customers.
This
limitation does not apply regarding a fee or cost charged the
utility service provider pursuant to division (A) or (B) of this
section.
Section 3. That all existing versions of sections 4939.01,
4939.02, and 4939.03 of the Revised Code
are hereby repealed.
Section 4. That section 4939.04 of the Revised Code is hereby
repealed.
Section 5. Sections 2, 3, and 4 of this act shall take effect
ninety days after the effective date of this act.
Section 6. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is to
provide, at the earliest possible time, for the re-enactment of
certain utility and cable right-of-way provisions, as enacted by
Am. Sub. H.B. 283 of the 123rd General Assembly, to provide for
their
continuation as part of Ohio law.
Therefore, this act shall
go
into immediate effect.
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